McWhirt v. Fearnow
| Decision Date | 09 October 1973 |
| Docket Number | No. 2--872A42,2--872A42 |
| Citation | 301 N.E.2d 810,158 Ind.App. 68 |
| Parties | James E. McWHIRT, Jr., Appellant, v. Gene FEARNOW, Appellee. |
| Court | Indiana Appellate Court |
R. D. Reading, Wabash, for appellant.
Albert J. Schlitt, Brown, Daggett & Schlitt, North Manchester, for appellee.
This is an appeal from a judgment sentencing appellant (McWhirt) to the Indiana State Farm for ninety days for contempt of court. We affirm.
The sentence was imposed during the course of proceedings before the court without a jury in a civil case in which the named appellee (Fearnow) had sued McWhirt for a money judgment as the result of a business transaction. On October 29, 1971, the trial court made a record (under the cause number and caption of the civil action) showing it had heard the plaintiff's evidence, the defendant's evidence, and plaintiff's rebuttal evidence, and the parties had rested. The entry concluded:
'Matter is continued to obtain a check which Defendant says was given to Plaintiff and which Plaintiff says he never saw.'
When the matter again came before the trial court on February 25, 1972, the following record was made (again under the cause number and caption of the civil action):
'By stipulation it is shown that the check in question was issued to the Defendant, and was never given to the Plaintiff. The Court now charges that the Defendant wilfully committed perjury in this cause in stating that the check above mentioned was given to Plaintiff and that Plaintiff cashed it. Defendant is ordered to show cause why he should not be punished for contempt of Court; Argument is heard. The Court finds the Defendant is guilty of Contempt of Court; He is sentenced to Indiana State Farm for a period of 90 days.
(The remainder of the entry on that date relates wholly to the civil case.)
On April 25, 1972, McWhirt filed a motion to correct errors under the cause number and caption of the civil case asserting that he had been denied a fair trial in that although he had made statements 'in explanation, extenuation, and/or denial' of the contempt charge 'the Court's record fails to follow the Statute in that nothing of the defendant's statements were ordered reduced to writing by the Court, nor appear in the Court's record as required by the statute.' 1
The statute, Ind.Ann.Stat. § 3--907 (Burns 1968 Repl.), IC 1971, 34--4--7--7, reads:
'When any person shall be arraigned for a direct contempt, in any court of record of this state, no affidavit, charge in writing, or complaint shall be required to be filed against him; but the court shall distinctly state the act, words, signs or gestures, or other conduct of the defendant which is alleged to constitute such contempt; and such statement shall be reduced to writing either by the judge marking it, or by some reporter authorized by him to take it down when made; and the same shall be substantially set forth in the order of the court on the same, together with any statement made in explanation, extenuation, or denial thereof, which the defendant may make in response thereto; and the court shall thereupon pronounce judgment, either acquitting and discharging the defendant, or inflicting such punishment upon him as may be consistent with the provisions of this act; and, if found guilty, the defendant shall have the right to except to the opinion and judgment of the court; and in all cases where the defendant may be adjudged to pay a fine of fifty dollars ($50.00), or more, or to be imprisoned for such contempt, he shall have the right, either before or after the payment of such fine, or undergoing such imprisonment, to move the court to reconsider its opinion and judgment of the case, upon the facts before it, or upon the affidavits of any, or all persons who are actually present and heard or saw the conduct alleged to have constituted such contempt; and, if the defendant shall fail to present the affidavit of every person present, in support of his motion, the court may direct the affidavits of all such persons as were so present, (whose affidavits the defendant may have failed to procure,) to be procured; and upon all such affidavits and the original statements of the court, and himself, touching such contempt, the defendant may move the court for a new trial, and recision of its judgment against him; and, if the court shall thereupon overrule such motion, the defendant may except and file a bill of exceptions, as in other criminal...
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Skolnick v. State, PS
...to so hold. See also State ex rel. Allen v. Vermillion Circuit Court (1967) 248 Ind. 258, 226 N.E.2d 324, and McWhirt v. Fearnow (2d Dist. 1973) 158 Ind.App. 68, 301 N.E.2d 810. Only in this context does the statutory reference to a contempt defendant being "arraigned" have significance. I.......
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Dunbar v. State, 2--174--A--22
...statement of his recollections, no such statement appears in the record and we cannot consider it. 5 In the case of McWhirt v. Fearnow (1973) Ind.App., 301 N.E.2d 810, the appellant attempted to supply a void in the record by inserting an affidavit in his brief. This Court 'No transcript of......
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